Professor Kevin Toh (San Francisco State University, IASH):
Law, Morality, Art, the Works
Abstract:
Consider the following four questions: (i) what is the law on such-and-such?; (ii) what is (the content of) the most fundamental law of a particular legal system?; (iii) in virtue of what is a certain rule the most fundamental law of a particular legal system?; and (iv) what facts need to exist or prevail in a community of people for that community to have laws? According to the position that is the orthodoxy in the contemporary Anglophone legal philosophy, we should expect a vertically integrated set of answers to these four questions. More specifically, according to the orthodox position, the correct answer to (iv) would enumerate only certain behavioral and psychological facts, and these facts would be those in virtue of which the other three questions are ultimately answered. In the first half of this paper, I argue that (iv) should be delinked from the rest of the questions, that a very plausible answer to (iv) would be neutral in its implications for (i) and (ii), and further that (iii) is a pseudo-question that should be suppressed. What motivates the adherents of the orthodox position is the belief or suspicion that laws are artificial or positive norms, and in this respect distinguishable from non-artificial norms like fundamental moral and epistemic norms. In the second half of this paper, I argue that this assumption can be preserved while abandoning the view that the law consists ultimately of certain behavioral and psychological facts. By analogizing laws to the propositions that make up works of fiction, which too can be conceived as artificial norms, and by carefully examining how implied fictional truths are generated, we can come to see that contents of laws are not determined solely by what legal officials or any others think and do. And we can do so without thereby adopting the simplistic view, most influentially advocated by Ronald Dworkin in recent years, that the law necessarily consists of implications of moral principles.